Property law 1 cat

Name; Bethwel Bitok

Adm.no; LLB/5243/22

Introduction

Property is a term deprived from the latin word properietate which is

equivalent to the French word proprius which basically means one’s
own. However today ,this definition may denote different things in
different settings. Therefore it may denote a subject matter of physical
nature, that may include land, car, house, company among other
things. Ones property is therefore that which one owns .
In the essay below ,I am going to put my focus on arbitrary
deprivation and the manner in which the Kenyan courts have applied
article 40 of the constitution as a framework for constitutional
property protection.
South Africa approach to arbitrary deprivation and of
property

When this is mentioned the case that comes to mind is the famous
landmark case off. 1The First National Bank of South Africa limited
West Bank versus Commission of the South African Revenue Service,
this case well interprets section 25 subsection one of the South
African constitution. This section is about property rights under it
says no one may be deprived of property except in the terms of the
law of general application and no law may permits arbitrary
deprivation of property. The wording of this section shows that the
protection of property is not absolute because they use, enjoyment and
exploitation of the property can be limited legitimately through
uncompensated regulatory deprivation, provided that these regulations
are not arbitrary, the idea was not really about to safeguard or to
protect private property from all state interference but rather secure it
1
The First National Bank of South Africa limited West Bank versus Commission of the South African
Revenue Service
from illegitimate and unfair state interference. In this case the big
question arose and the question was at what point is the previous and
considered arbitrary?
Deprivation according to2 section 25 of the constitution of South
Africa regards to the case of First National Bank of South Africa
limited West Bank versus commissioner of South Africa Revenue
Service.
The name deprivation is well distinguished from the term
“expropriation,” in the constitutional jurisprudence worldwide. From
the view or explanation of section 25 subsection 1 this deals with all
property and deprivations. If the deprivation infringes [limits] section
25 subsection one and cannot be justified under section 36 then it is
termed to be a provision which is unconstitutional. In this case then
the starting point for the constitutional analysis was considering any
challenge under section 25 for the infringement of property rights
must be section 25 subsection 1.
The first thing that the court will try to determine is whether their
interests at stake constitutes to property for purposes of section 25. In
the case of 3First National Bank it was held that the way in which
property owners uses his or her property or the value of the property
does not matter for the categorisation of the object as constitutional
property. The subjective interest may matter however in deciding
whether at the deprivation is arbitrary. However again the
constitutional court in First National Bank held that ownership of
corporeal movables is clearly at the heart of constitutional concept of
property.
The second aspect in the First National Bank case analysis is whether
there has been the deprivation of property in the First National Bank
case, the constitutional court held that “any interference with the use
enjoyment or exploitation of private property involves some
deprivation in respect of the person having title on right to or in the
2
section 25 of the constitution of South Africa
3
First National Bank
property concern.” After a long consultation it was settled that the
deprivation is present whenever the interference with the use,
enjoyment and exploitation of property was significant enough to
have legally relevant impact on the rights of the affected party.
Meaning of arbitrary in section 25

This brings into discussion of the infringement issue according to

section 25 subsection 1, this therefore is limited to determining
whether the deprivation of property enacted by4 section 114 is
arbitrary under the meaning of the concept as employed in section 25
subsection one of the of the constitution because the section 114
clearly states the law of general application. Arbitrary as used in this
section 25 is not limited to non rational deprivation the standard set in
this section is that of the arbitrariness while in section 36 is
reasonableness and justifiability. This must be at the back of your
mind while trying to interpret section 25 of the South African
constitution.
It is also very important that in every case where section 25
subsection one is mentioned or used to have regard to the legislative
context which the prohibition against arbitrary deprivation has to be
applied and more so as to the nature and extent of deprivation. From
the famous authors5 Dee waal et al, they are of the view that at ta
deprivation is arbitrary for the purposes of section 25 subsection 1 “if
it follows unfair procedures, if it is irrational, or is for no good
reason.”
However the authors concluded that;
The substantive element of section 25 subsection 1 non
arbitrariness requirement probably does not involve proportionality
and inquiry. The stated that deprivation will be arbitrary if it took
place for no good reason, seems to import a stricter evaluative norm

4
section 114 of SAC
5
Dee waal et al
then merely rationality, although less strict than proportionality
evaluation under 6section 36.
In conclusion it was reached that with regard to what has gone before,
it is concluded that at deprivation of property is arbitrary as meant by
section 25, when the law referred to in section 25 subsection 1 does
not provide sufficient reason for the particular deprivation in question
or is procedurally unfair sufficient reason is to be established as
follows;
a. It is to be determined by Getting the relationship between means
Employed,, mainly the deprivation in question And end sought to be
achieved, Namely the purpose of the law in question.
b. A complexity of relationships have to be considered
c. In evaluating the deprivation in question, regard must be made to
the relationship Between The purpose of deprivation And the person
whose property has been affected .
d. In addition regard must be had to the relationship Between The
purpose of the deprivation and the nature of property as well as the
extent of deprivation, in respect of such property
7
Article 40 of the kenyan constitution; protection of rights to property
This section states that
Subjects to8 article 65, every person has the right, either individually
or as an association with others to acquire and own property;
of any description and
In any part of Kenya
2)Parliament shall not enough allow that permits the state or any
person:

6
section 36 of SAC
7
Article 40 of the kenyan constitution
8
article 65 of Cok
 1. To arbitrarily deprived a person of property of any description
or of any interest in, or right over any property of any
description or
2. to limit, or in anyway restrict the enjoyment of any right under
this article on the basis of any of the ground specified or
contemplated in9 article 27 subsection 4
3)The state shall not deprive a person of property of any description,
or of any interest in, or right over, property of any description unless
that the deprivation;
1. Results from an acquisition of land or an interest in land or or
conversion of an interest in land, or title to land, in accordance
with 10chapter 5 or
2. is for public purpose or in the public interest is carried out in
accordance with the constitution and any act of parliament that:
 Requires prompt payment in full, of just compensation to
the person; And
 allows any person who has an interest in, or right over, that
property a right of access to a court of law.
4Provincials maybe Med for compensation to be paid two occupants
in good faith of land acquired under close three who may not hold
title to the land.
5.The state shall support, promote and protect the intellectual property
rights of the people of Kenya.
6. The right under this article do not extend to any property that has
been found to have been unlawfully acquired.

9
article 27[4] of Cok

10
chapter 5 of Cok
 Lucky bet limited vs ministry of Interior and coordination of
11

national government, Inspector General of police and betting control

and licencing board [interested party].
In this case the petitioners set out their petition dated 9th December
2016. In 2016 it was duly licenced company authorised to operate
gaming halls with slot machine in Kenya by the betting and licencing
board [BCLB] The petitioners complain is that following the request
by the betting control and licencing board, the deputy county
commissioner of the Dagoretti, raided the petitioners premises in
Kawangware and confiscated its gaming machine.
The petitioner complained to Nairobi county commissioner about
confiscating the gaming machine. The Nairobi county commissioner
requested guidance from the Betting and licencing board on what
should be done with those machines. The BCLB responded on the
matter by writing a letter and directed the county commissioner to
surrender the machines to the petitioner as it was duly licenced.
Based on the pleaded facts the petitioner claimed it’s protection of
property and the right to fair administrative action under article 40
read together with12 article 47 of the Kenyan constitution have been
violated by the arbitrary confiscation of its gaming machines and
failure to afford the opportunity to be heard before the machine was
confisticated .
The petitioner in this case seeks for relief which include and is not
limited to the following;
a. That’s the fundamental right and freedoms as enshrined
under article 40 and 47 of the constitution of Kenya 2010
have been contravened and infringed upon by the
respondent

11
Lucky bet limited vs ministry of Interior and coordination of national government, Inspector
General of police and betting control and licencing board [interested party].

12
article 47 of the Kenyan constitution
The judge held that according to the facts the petitioner was duly
licenced by the BCLB, added gaming machines were confiscated by
the agents of the first and second respondent.Therefore the declaration
hereby issued was that the petitioners right to property under article
40 of the constitution was violated by the arbitrary seizure and
withholding of its property namely gaming machine.
Another similar case is the case of13 crywan enterprise limited versus
kenya Revenue Authority.
In this case the respondent action of impounding and detaining the
petitioners imported goods pending confirmation of payment of
custom duty infringes the petitioners right to property secured by
article 40 and whether the14 East Africa custom management act are
unconstitutional after to the extent that they permit such seizure. In
this case it was held15 sections 210 and 211 of the East Africa customs
management act which provide for forfeiture of goods at vessels are
not ultra varies article 40 subsection two of the constitution.

The point at which government may interfere with the

property.

This points a rule simulated in article 40 subsection three of the

Kenyan constitution,
It states that; the state shall not deprive a person of property of any
description, or of any interest in, or right over property of any
description unless the deprivation.
1. Is for the public purpose or in the public interest a discarded
out in accordance with the constitution and any act of
parliament that requires prompt payment in full or just
compensation to the person and allows any person who has

13
crywan enterprise limited versus kenya Revenue Authority.

14
East Africa custom management act
15
sections 210 and 211 of the East Africa customs management act
 an interest in or right over that property a right to access a
court of law
16
Hawaii Housing Authority versus midkiff
It was held that, the taking of land concentrated in the hands of a
few individuals for distribution to the wider population amounted
to a public purpose.
17
Joseph k Nderitu vs Attorney General
The court held that all persons have the right to property and
property can only be compulsoryly acquired for a public purpose or
in the public interest. The public purpose must be direct and not
remote or fanciful.
The public purpose has been defined to include infrastructure such
as roads, public buildings, religious institutions, Public Utilities
and any other analogist public purpose.
In case the public purpose fails and the land required is no longer
needed for the purpose, the original owner of the land has pre-
emptive rights to the land; the national land Commission must
offer him or her the land for sales fast, before anyone else and the
owner shall use the money which was given to him as
compensation to reacquire the land. This eliminates any room for
land grabbing as the land goes back to the owner.
2. The government has to promptly pay just compensation for
taking the property.
The rule of compensation is to repay people for their losses they have
suffered. It is based on the principle of equivalence which states that
the affected landowners should neither be enriched nor impoverished
as a result of compulsory acquisition. Compensation also ensures that
no single individual bears the entire burden for the benefit of society
at large.
16
Hawaii Housing Authority versus midkiff

17
Joseph k Nderitu vs Attorney General
18
Kanini farm Ltd vs commissioner of lands
Just compensetion was held to be the market value of the land. Market
value is defined as the price which are willing seller might be
expected to obtain from a willing responsible purchaser. Furthermore
according to the decision in 19 limo versus commissioner of lands the
courts take into account nearness of the land in question to the main
town and its nearness to the road access in determining its value
The just compensation has to be paid promptly. This means that’s this
compensation should be paid to those with an interest in the land,
immediately and without delay. The law however fails to provide a
clear time frame for the payment of compensation which creates room
for delayed payment. For example in the case of;
20
Mathatani Ltd vs commissioner of lands
The court held that the compensation paid to the claimant after four
years of the acquisition was null and void as it was not prompt and
therefore not just compensation.
Conclusion

In conclusion, this essay is has elaborated clearly that deprivation

must not be arbitrary and has also discussed the protection to property
rights as stipulated in article 40 if the Kenyan constitution. The essay
has also explained the article 25[1]of the south African
constitution .lastly my essay has also clearly shown the point at which
the Kenyan government can interfere with ones property ,as stipulated
in article 40[3]of the 2010 constitution.

18
Kanini farm Ltd vs commissioner of lands
19
limo versus commissioner of lands
20
Mathatani Ltd vs commissioner of lands